And in construing the statute of that state (3 Starr. & C. Ann. Stat. (2d Ed.), p. 2927, § 40), which provides, "In all proceedings for a partition of real estate, when the rights and interests of all the parties in interest are properly set forth in the petition or bill, the court shall apportion the costs, including the reasonable solicitor's fee, among the parties in interest in the suit, so that each party shall pay his or her equitable portion thereof, unless the defendants, or some one of them, shall interpose a good and substantial defense to said bill or petition," Metheny v. Bohn, 164 Ill. 495 (45 N. E. Rep. 1011), the court say: "By the. statute the court is directed to apportion the fees when such rights and interests are properly set forth, unless some defendant shall interpose a good and substantial defense to the bill or petition. To such a bill no defense could be successful, and to say that defendant should pay complainant's solicitor, unless he succeeded in an impossible defense, would be absurd. It is evi- . dent that the good and substantial defense which may be interposed, and which will prevent the allowance of the fee, is a defense of a good and substantial character. The legislature could not have intended the statute as an illogical absurdity, and we think it should be construed as meaning that a defense valid and substantial in character made in good faith, and on reasonable ground, should exempt a defendant‍ from paying a solicitor of his adversary, not for services rendered to him, but for a hostile attack upon what he in good faith believes to be his substantial right. If the bill states the rights and interests of the parties correctly, a defense which is merely formal, frivolous, or vexatious, or which is not undertaken in good faith, would not be regarded as good or substantial. The defense in this case was of a good and substantial character, and was not undertaken without reasonable grounds, although it was overcome by evidence on the part of complainant, and proved unsuccessful. In such a case it would not be equitable for the defendant to pay a part of a solicitor's fee solely earned as his adversary." Under the Illinois statute, the court will not make an allowance of a solicitor's fee where the legal services are all performed by one of the complainants who is an attorney. Cheney v. Ricks, 168 Ill. 533 (48 N. E. Rep. 75).

Sec. 677. Adjudication of title in action for partition-Force and effect of decree. A third party will not be allowed to intervene for the purpose of litigating an independent adverse title. Hillens v. Brinsfield, 113 Ala. 304 (21 So. Rep. 208). The statute of Missouri (Rev. Stat. 1889, §§ 7143, et seq.), authorizes the settlement of conflicting rights, claims and interests of the parties among themselves and a partition of the land in the same proceeding. Budde v. Rebenack, 137

Mo. 179 (88 S. W. Rep. 910). Recitals in a decree of partition as to admissions of title are conclusive against the parties thereto and their privies. Green v. Bennett, 120 N. C. 394 (27 S. E. Rep. 142). A decree of partition cannot have the effect of showing title in the parties to it, as against strangers to the suit and its parties. High's Heirs v. Pancake, 42 W. Va. 602 (26 S. E. Rep. 536). A decree for partition sale does not conclude the homestead rights of minor defendants, where such rights are not mentioned in any of the proceedings upon which it is based. White v. Sharpe, 98 Tenn. 33 (39 S. W. Rep. 1051). Where one seeking partition of lands in which she has an interest, consents to a decree assigning a portion of the land to her "for her sole and separate use during her life and at her death to her children then living, and the issue of such as may be dead," such a decree is binding upon her and creates a valid contingent remainder in fee. Bigley v. Watson, 98 Tenn. 353 (39 S. W. Rep. 525; 38 L. R. A. 679). Upon an exhaustive review of the Indiana cases, upon the question as to how far title is adjudicated in partition proceedings, it is held that a decree in such proceedings is conclusive upon the parties thereto, upon the question of their holding the land involved in the decree as cotenants, and such decree estops a party thereto from asserting that he held any part of the premises in severalty, adversely to his cotenants at the time of the partition, although he gives as an excuse for not asserting such right that he was mistaken as to his rights. Irvin v. Buckles, 148 Ind. 389 (47 N. E. Rep. 822).

Sec. 678. Partition sales. In Texas it is held that a court of equity has jurisdiction, independent of the statute, to order property sold for partition when found to be incapable of partition in kind without serious injury to the interests of

the parties. Rev. Stat. 1879, art. 3490, applied. Moore v. Blagge, 91 Tex. 151 (38 S. W. Rep. 979). See opinion for review of English cases. A partition by sale will not be ordered against the objection of one of the coparceners, when it is not shown that a division in kind is not practicable, or that loss or inconvenience would result from it. Coach v. Hake, 49 La. 458 (21 So. Rep. 640). Where, in case the land is indivisible, the statute allows any one or more of the parties to elect to take it at its appraised value, it is error for the court to direct a sale of the land until the parties interested have been afforded reasonable time and a reasonable opportunity to elect to take the land at the appraisement. Morris v. Tracy, 58 Kan. 137 (48 Pac. Rep. 571). In the absence of a statute authorizing differently, a partition sale of incumbered real estate must be made subject to such incumbrance. Becker v. Carey, N. J. Eq. (36 Atl. Rep. 770). Applying La. Rev. Civ. Code, art. 1343, it is held that an heir who purchases at the sale to effect the partition, to complete his title must pay the surplus of the price over the portion coming to him as fixed by the partition; and one taking a mortgage from such purchaser takes subject to the title of the coheirs until the portion due them has been paid. People's Bank v. David, 49 La. 186 (21 So. Rep. 174). A partition sale is not binding upon infant defendants for whom no guardian ad litem was appointed, but such a sale is ratified by their receiving their share of the purchase money after becoming of age. Bogart v. Bogart, 138 Mo. 419 (40 S. W. Rep. 91). A referee appointed to make a partition sale has no authority to convey any premises other than those described in the complaint and directed by the decree to be sold. His deed for other lands passes no title to the purchaser and the parties to the partition proceedings are not estopped from disputing it. Heller v. Cohen, 154 N. Y. 299 (48 N. E. Rep. 527). Where upon a bidder's refusal to pay his bid at a partition sale of devised real estate, the devisees arrange for the referee to convey to the purchaser, who conveys the land to them in lieu of money, they cannot subsequently impeach the action on the ground that the referee had no authority to make the deed without the receipt of the amount of the bid. Gerke v.

Cameron,

Cal. (50 Pac. Rep. 434).

Sec. 679.

Statutes amended and new statutes. Cal. Code Civ. Proc., § 1772-powers of guardians—amended, Laws 1899, p. 235. Mo. Laws 1893, act Mar. 6th, repealing Rev. Stat., § 7175, is repealed by Laws 1899, p. 313. Neb. Code Civ. Proc., $$ 802, 839-who may have partition-contents of complaint-service upon defendants-amended, Laws 1899, p. 344. New Jersey has a new statute concerning partition, Laws 1898, pp. 644-668; and sundry acts relative to partition are repealed by Laws 1898, pp. 668-670. N. C. Code, § 1906-who is authorized to sell in partition proceedings amended, Laws 1899, p. 281. A new statute in Virginia provides that “ a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof, to the satisfaction of his lien." Laws 1897-98, p. 488, amending Va. Code, § 2562, providing who may compel partition and what courts have jurisdiction of the action. Wis. Rev. Stat., § 3102, concerning complaint in partition has been amended and a new section (§ 3113a) in regard to the duties. of commissioners in partitioning land has been added to the statute. Laws 1899, p. 613.

PARTNERSHIP REAL ESTATE.

EPITOME OF CASES.

Sec. 680. Dissolution of partnership by death of partner-Transfer of partnership real estate without a formal conveyance. Real estate held and used for partnership purposes is to be treated, upon the dissolution of the partnership by the death of one of its members, and for the purpose of closing up its business, the same as personal property; and a settlement of the firm business, made by the surviving partner and the administratrix of the deceased partner, with a view to discharging the partnership debts and winding up the partnership business, by the terms of which it was agreed that the partnership real estate should be retained by the survivor, and the title thereto should vest in him, will be upheld

§ 680-682

PARTY WALLS.

626

when approved by the probate court in a proceeding to which the administratrix and the heirs of the deceased partner were parties. And in such case title to such real estate passes to the surviving partner under such settlement and its approval by the probate court, without any formal conveyance of the deceased partner's interest. Sternberg v. Larkin, 5o Kan. 201 (48 Pac. Rep. 861; 37 L. R. A. 195). Citing, Woodward-Holmes Co. v. Nudd, 58 Minn. 236 (59 N. W. Rep. 1010; 49 Am. St. Rep. 503; 27 L. R. A. 340).

Sec. 681.

Miscellaneous notes. In Louisiana it is held that where immovable property belongs to a partnership, a mortgage by one of the partners, though using the firm name, will bind only his half of the property. Baker v. Lee, 49 La. 874 (21 So. Rep. 588). Particular real estate held not to be partnership propery. Harris v. De Raismes, N. J.

Eq. (38 Atl. Rep. 637). Particular evidence held to show that a mine was operated under a lease by two persons. Hodgson v. Fowler, 24 Colo. 278 (50 Pac. Rep. 1034).

PARTY WALLS.

EPITOME OF CASES.

Sec. 682. Use of party walls-Cutting openings. One owning in common one-half of a party wall, which forms part of a building of his co-owner, is entitled to use the wall to its middle line as a support for a building erected by him in any manner he desires, so long as the wall is not thereby injured or weakened in respect to its use as a part of his co-owner's building. McMinn v. Karter, 116 Ala. 390 (22 So. Rep. 517). The cutting of openings in a party wall may be enjoined. Weems v. Mayfield, 75 Miss. 286 (22 So. Rep. 892). The court say: "A division wall is usually a solid wall, and by usage the words' party wall' and 'division wall' have come to mean a solid wall. Matts v. Hawkins, 5 Taunt. 20 (1 E. C. L. 24); Normille v. Gill, 159 Mass. 427 (34 N. E. Rep. 543; 38 Am. St. Rep. 441); Graves v. Smith, 87 Ala. 450 (6 So. Rep. 308)."